Legally, there are two reasons (in the US):
1) The Fifth Amendment: No person shall ... be deprived of life, liberty, or property, without due process of law. Quarantine looks very much like imprisonment, and the power to indefinitely imprison without due process is an extremely dangerous one.
2) Negligence is a tort**, not a crime, and torts have to prove damages by a preponderance of the evidence. You can't successfully sue Bob for giving you COVID unless you can prove it more likely than not that your COVID came from Bob. That's basically impossible.
** As it should be. People slack off very frequently, and if inconsequential slacking off was criminally punished then civilization would collapse.
You can't successfully sue Bob for giving you COVID unless you can prove it more likely than not that your COVID came from Bob. That's basically impossible.
In South Korea where the contact tracing is working this seems like it would be possible. Patient 31 has been more-or-less determined to have lead to 5k+ people getting infected.
If the numbers come down in the US such that the authorities are able to contain via contact tracing then this would become reasonable there too.
But quarantine isn't a punishment, nobody's saying the person being quarantined has done anything wrong. It's just that you've suddenly become extremely dangerous, and that means you have to change your behaviour quite extremely to avoid harming other people. That's very inconvenient, sure, but nobody's convenience gives them the right to put others in harms way.
I'm not a lawyer but criminal negligence is definitely a thing:
Quarantine actually is the same thing as imprisonment, because you can't leave. You are deprived of liberty. The justification is different, but a justification and $3 would get you a coffee if Starbucks weren't closed. The US Constitution was written with the understanding that politicians are prone to lying when convenient.
Negligence can be an element of a crime. You need a guilty act and some level of guilty mind (purpose, knowledge, recklessness, or negligence, in declining order of culpability). Walking around isn't a guilty act. Homicide is a guilty act, but you'd have to prove beyond a reasonable doubt that the defendant's actions caused the death. It will be very hard to prove that the victim's infection came from the defendant and not from any of the large number of other infectious people that are the defining feature of a pandemic.
Endangerment might work, depending on circumstances and jurisdiction, but I would expect courts to be skeptical. Walking around isn't reckless or wanton, by conventional definitions.
Due process isn't restricted to finding that a person has done anything wrong.
Frankly, I think that the government should simply shut down the courts for the duration of the emergency, enforce quarantine without regard to the law, and then claim sovereign immunity afterwards, while acknowledging that it had questionable constitutional authority to do so. The pretense of rule of law in US government has already been abandoned, we might as well get some practical use out of that before the revolution.
Making Bob liable for giving you COVID is a simple matter of finding a court that wants to do just that. The prove-more-likely-than-not-that-X-caused-your-harm standard has been under attack by modern U.S. courts for a while now.
There is a series of cases where pregnant mothers were injured by a widely manufactured drug marketed to them, but couldn't figure out which of the dozen or so drug companies manufactured the specific pills each particular woman took. The court in California wanted to make all the drug companies liable so it invented the concept of market share liability. [1][2] This doctrine was invented in California and New York in response to the scandal and has since grown across the country. The courts use this principle even in cases where the defendant drug company can prove that it didn't manufacture the particular pills the plaintiff took.
I could see some very liberal courts inventing an "infection share liability" doctrine and hold defendant disease carriers liable for the percentage chance they infected the plaintiff. This is a weird time and nobody knows what stupid things policy-over-law courts are liable to do.
Hymowitz v. Eli Lilly and Co., 539 N.E.2d 1069 (N.Y. 1989) ↩︎
One unfortunate consequence of [the US still lacking enough tests to cover everyone] is that we rely on people to come forward and ask for testing. The natural effect of your proposal would be to deter some people from getting tested at all!
(And yes, the problem here isn't directly with your proposal. But still, incentives are hard to get right.)
You can extend the same negligence standard further, though. You can tell people: check your temperature in the morning, and if you have a fever you are lethally dangerous. That facts of the situation we're in are such that, going outside with a fever really does burden other people with unconscionable risk. But we've left it for individual people to deduce that, which means we can't enforce that as a standard.
A law could be passed that said, if prosecution can show beyond a reasonable doubt that you either knew or did not care to know whether you had a fever when you left the house, and you left the house anyway, that that is sufficient to show a negligent disregard for others' safety. You'd then have to make an affirmative defence for why it was not actually negligent (for instance, you could argue that you'd have coronavirus before, or that it was reasonable to believe you could not encounter anyone).
A lot of drug laws work on sort of analogous logic: they define "trafficable quantities", such that showing you possess some amount of a drug is sufficient to argue you're distributing that drug, and then it's up to you to mount an affirmative defence that moves the balance of probability back in your favour. You're still assumed innocent of the fact of possession --- but the law is allowed to encode some inferences, once facts are established.
That law is void, because the right of the people to assemble peaceably shall not be infringed. Requiring that people check their temperature in order to go outside violates several constitutional rights, including due process.
You might be able to make a law which covers people who have been formally diagnosed with an infectious disease. But that law could not be passed in time to not be moot.
It would possibly be an unconstitutional law, but it is also probably an allowed emergency executive power. Anyone care to wager whether state bans on gatherings will be challenged and struck down? The one I looked most closely at was that the Washington State Governor announced a blanket ban on gatherings of more than 250 people, and called on the National Guard to enforce if necessary. That's a very direct violation of the first amendment right to assemble, and I'd give odds that it'll be upheld. There have been further restrictions and stay-at-home orders, but they're not as clear about violating this right.
Oh, the order specifically prohibits religious gatherings over this size, so it ticks that box too.
I'm 30% sure that, if a legal challenge is filed, it will be dismissed as moot because by the time a judge hears the case, the emergency will be over and the emergency orders rescinded. Most of the remaining chance is on "The court does not rule on the merits for a specific reason that I don't predict", and the courts ruling on the merits of the ban, given that someone challenges it, seem very unlikely.
Frankly, my civic position is that the current situation is one in which temporary government overreach is appropriate, but I'm also experiencing a thing where I want to reject the precedent that the government *saying* that there's an emergency is sufficient to invoke unconstitutional powers.
I can actually have it both ways: What is sufficient for the emergency unconstitutional powers to be invoked is the *public* acknowledging that there is an emergency. But that terrifies me, because by around week 15 of the lockdown a large segment of the public is going to believe that there is no longer an emergency worth those powers, and the Just Rebellion Against the Tyranny will begin.
My major worry is that around week 15 (if not earlier) empty store shelves will become a more pressing emergency than the virus.
True, but there are some anti-assembly laws being passed and enforced anyway. They're clearly unconstitutional and, if left in place very long, will be struck down. Emergency actions are often more political than legal; if you do something illegal but the people who could check and balance you decide not to (hopefully because your actions make sense), you can get away with a lot.
There are limits; the perceived benefit of the action has to overcome the insult to legal propriety in the relevant minds. Banning meetings for a few weeks will probably fly, especially if the internet can substitute.
I disagree with the OP. That being said, logic is logic. (Obviously when there is insufficient action more action may be called for, and just the opposite when there is 'too much'.)
At the worst extremes we have people throwing up their hands and saying, “well we’re screwed, white people will never do what they’re told, unlike those obedient Asians — and it’s not like we can make them, right?”. That attitude is completely crazy. It’s not true, and it’s part of the general atmosphere of extremely mixed messages that have made the crisis so bad.
"Oh no," say the pessimists," there is nothing to be done, we are all going to die." A pathetic excuse for inaction.
1. Tell people what they need to do. If you can do nothing else, then do what you can.
People who are tested or presumed positive will obey quarantine if they understand that they might go to prison if they don’t. This is in no way an extreme or authoritarian response. It’s completely consistent with civil liberties. Any individual freedom is always constrained by reasonable expectations of harm. None of us have a general-purpose freedom to act however we want regardless of the risks to other people. The specifics of the coronavirus pandemic are unusual, but the general principle isn’t.
Is giving people money to quarantine a violation of civil liberties?
2. Whatever you think of a given plan, there are both 'positive' and 'negative' incentives.
Take the most extreme case: someone has tested positive and been instructed to self-isolate, but the person ignores the instruction and infects someone else, who later dies of the infection. This is an act of extreme and callous negligence. The person who left quarantine was informed of a specific risk, they ignored that information, and they have caused someone else’s death for a frivolous purpose. It is not unreasonable to imprison that person for many years in order to deter that sort of negligence.
Assuming causality is easily established... (Outside of a hypothetical, things can get way more complicated, especially preventative measures.)
3. Why should the sentence occur, after the fact? If someone is infected and therefore they are a danger to others (until X amount of time has passed), then there exists, if anything a 'natural' sentence - until they can't infect others. (Sanitation, etc. at the end of quarantine may help with keeping that sentence short.) But if we don't want them in prison, hospital, or a special quarantine facility, all that is needed is much lighter version of house arrest. The arguments for prison are flimsy by comparison - are the risks to others increased or decreased as a result of such a sentence? In the case of quarantine, it seems as though a more solid proof could not be asked for, by comparison.
(What crime is punishable by such a short sentence?)
Our society is built on both individual freedom and individual responsibility.
A powerful statement. Perhaps there is some disagreement about what that means, and today we are seeing the price of a lack of clarity.
Have a look at the Civil war and WWII for what governments are able to do in a crisis. Tl;dr - a lot. All these constitutional guarantees are not absolute. You are not allowed to own a nuclear bomb. You are not allowed to yell fire in a crowded theater. Internments have been a thing.
Nor is negligence or worse always a requirement for a crime. Remember that speeding ticket? Did the government have to prove negligence - there is a thing called strict liability.
You could have something like: Be a person suspected of being infected with CV / with a quarantine order, who gets within 2 yards of any other person not an immediate household member. Penalty 10 years.
(Source: actually passed a university course in Criminal Law, before I decided I did not want to be a lawyer after all).
The presentation below suggests that centralized isolation is needed not just home confinement. This would be more difficult to get through the courts I think.
Preso
Paper https://www.medrxiv.org/content/10.1101/2020.03.03.20030593v1
Slides
https://drive.google.com/file/d/1QFfBbs-7-qCqDJ93_Ww6QQUQlMVp77Pl/view
Upvoted for important topic, but I disagree that there's significant difference in enforcement of any low-probability high-cost risky behavior in US or EU (direct experience in US and UK, close friends in some EU countries, less knowledge of Asia).
DUI is a good example - it's illegal everywhere, and the legal standards have been tightening over the last few decades, but it's still pretty rarely enforced, and I know a fair number of people who mildly violate it somewhat routinely, with no consequences (yet). Failure to vaccinate children is another example of clear negligence, with no prosecution. In a lot of countries, tobacco smoke remains fairly prevalent, in violation of laws trying to protect non-smokers.
On the other side of the coin, a number of US states have declared enforcement of quarantine - you can quibble that it took longer than some other places - that's true, but irrelevant to sociological issues of negligence-enforcement. I don't know the arrest/ticketing rate, and suspect it's very low.
(Not a lawyer so potentially this isn't correct, but:) Legally negligence is a bit weird in that it doesn't really work probabilistically. If you actually cause the harm you suffer the culpability, but otherwise, maybe not. I do find it a bit unsatisfying, but I suppose the advantage is it's robust to the state being completely wrong about whether something is risky. In practice most people do adjust their behaviour to the potential downside for themselves, preventing the potential downside for others. But it does depend on the individual to make a rational risk calculation.
The extent of the negligence definitely matters. Not vaccinating your children isn't on the same planet of externalised risk as going outside with coronavirus. And passive smoking is several orders of magnitude lower externalised risk than failing to vaccinate your children.
My main point is that the argument needs to be made forcefully that there's a simple and unexceptional basis for requiring people to comply with quarantine. This isn't a strange situation where the state must grab additional power. Actually I've seen a lot of people say that libertarian theories of justice fail to account for this situation. I'm not a libertarian but I think it's important that we totally reject that take. That's not what's going on at all.
The situation must not be framed as one exceptional circumstance where the state gets to basically imprison you in order to force you to do it the favour of not walking around. That's completely not what's happening. Instead the strange facts of the situation are this: by walking around you might be causing people to die. We must make people understand this strange fact. If you recklessly say "I don't care I'm walking around anyway", and someone does in fact die, then you are culpable. For the vast majority of people, this will be enough to make them comply. If you know you're sick and you know that going outside might send you to prison for the rest of your life, why risk it?
Bob walks around most days. People die every day. Sure, Bob might have been unknowingly transmitting COVID, or any of a thousand other viruses. Bob was definitely, by the act of breathing, affecting the course of every hurricane for the rest of time. How do you assign culpability?
I mean...The same way we always do? It depends on whether the risks are reasonably forseeable. We know that if you go about your business as normal while infectious with the coronavirus, you might infect 4 people on average. If we take a lowish infection fatality rate and say that 0.1% of infected people die, then you have a something like a 0.4% chance of directly causing someone's death.
How bad is a 0.4% chance? Should the law tolerate people putting others in danger, at about that level? If you could load up a 200-barrel revolver, would it be okay to put one bullet in, spin and fire?
Here's one way to think about it: if you were to act such that you introduced a 0.4% chance of someone else dying every day for a year, there's a 23% chance someone would eventually die. So I would say, no, this is not a level of danger we can accept people to impose on non-consenting strangers.
In practice the way that I think the law normally works is, if your actions show a disregard for the welfare of others and someone is in fact harmed, then you can be held culpable. So if you go outside, someone catches coronavirus and dies, then you can be held responsible. By my crude calculation, there's about a 1/200 chance of that happening. I don't think most people would break quarantine if they knew there was a 1/200 chance of someone dying and them going to prison. I think just explaining that the law was seeing it that way makes them take the risks seriously, while as it currently stands, lots of people think it sounds like bullshit.
It's the "someone is in fact harmed" that is the tricky part in this case. If somebody who was previously asymptomatic got coronavirus a week after Bob walked past them, how do you propose to determine whether they got it from Bob? If you're proposing a criminal penalty in the U.S., then you will need to prove this beyond a reasonable doubt. Probabilities of less than 99% won't do, and there may be a few jurors who think 99.9999% still gives a reasonable doubt (the jury system has been described as "trial by people you would not normally consider your peers").
One of the earliest angles on the coronavirus pandemic was that this was a story of the draconian extremes that an authoritarian government can impose on its people. This angle on the events in Wuhan flourished especially while the media and most governments were not taking the pandemic seriously. So we’ve had a lot of hand-wringing: what can western governments do about this, because obviously we can’t do that?
At the worst extremes we have people throwing up their hands and saying, “well we’re screwed, white people will never do what they’re told, unlike those obedient Asians — and it’s not like we can make them, right?”. That attitude is completely crazy. It’s not true, and it’s part of the general atmosphere of extremely mixed messages that have made the crisis so bad.
For instance, consider the Imperial College report to the British government,
which modelled out the likely effects of different policies. Their model assumes that only 70% of people instructed to self-isolate after a coronavirus diagnosis will comply, for a total reduction in contacts of 75%. For stricter measures that quarantine entire households on one positive diagnosis, they assume a compliance rate of only 50%. We’re shutting down entire economies, and yet we view ourselves as helpless to enforce quarantine on confirmed or presumed positive cases?
People who are tested or presumed positive will obey quarantine if they understand that they might go to prison if they don’t. This is in no way an extreme or authoritarian response. It’s completely consistent with civil liberties. Any individual freedom is always constrained by reasonable expectations of harm. None of us have a general-purpose freedom to act however we want regardless of the risks to other people. The specifics of the coronavirus pandemic are unusual, but the general principle isn’t.
Take the most extreme case: someone has tested positive and been instructed to self-isolate, but the person ignores the instruction and infects someone else, who later dies of the infection. This is an act of extreme and callous negligence. The person who left quarantine was informed of a specific risk, they ignored that information, and they have caused someone else’s death for a frivolous purpose. It is not unreasonable to imprison that person for many years in order to deter that sort of negligence.
That’s the general standard we have in our societies for actions that are actually negligent, that really could cause foreseeable harms and risks of death. So what message does it send to someone if they test positive for coronavirus, and the state merely asks them nicely to comply with quarantine procedures? What reasonable inferences does that invite?
People aren’t taking self-isolation and quarantine procedures seriously because our governments aren’t actually acting like they’re serious. We’re all constantly presented with arguments that aim to persuade us to change our behaviour to reduce some remote risks, or achieve some remote benefit. We’ve all learned to pick over these arguments and weigh them against our own considerations. This also leads to a bit of an arms race: arguments convincing us to recycle, practice safe sex, use less water, buy local, or whatever else are all competing, so we expect their claims to be at least a little overstated.
We're saying that obeying quarantine orders is an urgent matter of life-and-death but we're not acting accordingly. Naturally, people notice the subtext. They don’t bother to argue. They've played this game before. They're happy to agree that, sure that’s a thing I should do…There are lots of things I should. If we act like obeying quarantine is just another optional supererogatory thing, it's no surprise that people weigh it up, and take it or leave it.
Our society is built on both individual freedom and individual responsibility. If you fail to take due caution in your actions, and you cause easily foreseeable harm, your actions may result in criminal penalties. The simple problem is that we’re not framing it this way, and that's hopelessly confusing. We’re in the rare situation where it would actually help to have some zero-tolerance rhetoric from governments and prosecutors. We desperately need guidance from governments that the situation is grave, the risks are real, and if you are not careful you could find yourself in prison for the rest of your life, precisely because other people may well be found dead.
Think of it this way. If you get in your car and drive around drunk, the maximum number of families you might kill is one. If you’re confirmed or even presumed positive for coronavirus and you just go about your day, there’s no real limit to how many additional deaths your actions could eventually cause. Why should anyone have any sympathy if you’re punished for such extreme negligence? You weren’t even drunk when you did it.